Article 52(2) of the European Patent Convention mentions a number of types of subject-matter, such as computer programs and business methods, which are not considered to be inventions and thus are not patentable. In 52(3), it adds that this exclusion from patentability is only effective for such subject-matter as such. The European Patent Office has been attempting to circumvent the limitations by introducing far-fetched interpretations to the meaning of "as such", by means of which programs and methods can be declared to be not as such.
Paragraph 2 of the European Patent Convention (EPC) mentions fifteen items, among which are mathematical methods, business methods, and computer programs, that are not regarded as inventions, and thus are not patentable. Paragraph 3 adds:
- The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.
The reason for 52(3) is that during the founding conference for the EPC in 1973, some delegations were against the limitations imposed by the proposed article 52, and spread unfounded fears that these limitations would exclude from patentability all physical inventions which incorporated a computer program. In response to these claims, 52(3) was added as a clarification that the exclusions apply only to such subject-matter and not to inventions that are incorporating such subject-matter (Pilch, 2003).
The phrase "as such" does not have any special meaning in law. In everyday language, according to the Oxford Dictionary (Oxford, 1989), its meaning is "as the word is usually understood; in the strict sense of the word." It appears, therefore, that paragraph 52(3) is superfluous, and, indeed, it does not appear in the Danish, Greek, and Swedish patent laws, despite the fact that the subject-matter-related provisions of these laws are essentially local elaborations of the EPC.
In addition, the fact that 52(3) is written in such a way that it applies to all quite different fifteen items of 52(2), which include discoveries, scientific theories, and aesthetic creations, indicates a flaw in the legislation. However, if we attempt to interpret the meaning of "as such" systematically and historically, we shall arrive at the conclusion that the items mentioned in 52(2) are not to be split in subsets ("as such" and "not as such"), but only that inventions developed with the help of such items can be patentable (Lenz, 2001).
The European Patent Office (EPO), however, with decision T1173/97, has developed an interpretation according to which "as such" means "without technical character". During the discussion about the software patent directive, "as such" was being used extensively in sentences such as "computer programs as such shall not be patentable", which, coupled with terms such as "computer-implemented invention", intended to fool skeptics into believing that the Commission's proposal ensured the non-patentability of software. In reality, the EPO's interpretation of "as such" had also been incorporated in the proposal, rendering such assurances meaningless.
Lenz, K. F., Interpretation of Article 52 of the European Patent Convention in view of the question, to what extent software is patentable, 2001. Available at http://swpat.ffii.org/analysis/epc52/exeg/index.en.html.
Oxford Advanced Learner's Dictionary of Current English, Fourth Edition, A. P. Cowie (Ed.), Oxford University Press, 1989.
Pilch, H., Berichte der Münchener Diplomatischen Konferenz von 1973, 2003. Available at http://swpat.ffii.org/papers/muckonf73/index.de.html.